Pinson v. Pacheco ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
May 26, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEREMY PINSON,
Plaintiff-Appellant,
v. Nos. 10-1553 & 10-1576
(D.C. No. 1:10-CV-01377-REB-MJW)
ROBERT PACHECO; SARA (D. Colo.)
REVELL; MERRY WILNER;
DELBERT SAVERS; HARLEY
LAPPIN, MICHAEL NALLEY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Plaintiff-Appellant Jeremy Pinson, a federal prisoner incarcerated at the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Administrative Maximum (ADX) facility in Florence, Colorado appearing pro se,
appeals the district court’s denials of two motions for a preliminary injunction.
Pinson filed a complaint pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that federal prison
officials were deliberately indifferent to his safety, in violation of his Eighth
Amendment rights. In his complaint, Pinson sought compensatory and punitive
damages for past inmate attacks against him and an injunction to prevent
defendants from housing him with inmates who pose a danger to him.
Pursuant to the Bivens action, Pinson filed a series of three motions for a
preliminary injunction. The district court denied the first of these motions
concluding that the harm Pinson alleged was speculative, and this court affirmed
the district court’s decision. See Pinson v. Pacheco, 397 F. App’x 488 (10th
Cir.), cert. denied, 131 S. Ct. 834 (2010). The district court subsequently denied
the second and third of these motions. Pinson appealed both denials, and the
appeals were consolidated into the present case. Only the denials of the second
and third motions are at issue in this case. Exercising jurisdiction under 28
U.S.C. § 1292(a)(1), we affirm.
I. BACKGROUND
While this court has previously outlined Pinson’s incarceration history, see
Pinson, 397 F. App’x at 490, we provide a summary of the relevant facts herein.
Pinson asserts that he was initially incarcerated in a state prison facility. See
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Aplt. Br. at 6. According to Pinson, he was a member of the Sureno prison gang
and was involved in a prison riot during which another inmate was murdered. See
id. Pinson asserts that he subsequently cooperated with law enforcement
concerning the murder and “dropp[ed] out” of the prison gang. Id. at 6–7.
In May 2007, Pinson began serving a 252-month federal sentence at the
federal correctional institution in Beaumont, Texas. See id. According to Pinson,
because he was “involved with fights with other inmates,” he was transferred to
the United States Penitentiary (USP) in Florence, Colorado. Id. Pinson alleges
that, in December 2007, he was attacked by his cell-mate at the USP in Florence,
causing Pinson to lose consciousness and resulting in serious bodily injury to him.
Id. Pinson was then transferred to the federal correctional institution in
Victorville, California. Id. According to Pinson, on April 9, 2008, he was
attacked by five inmates at the Victorville facility due to his “past cooperation
with law enforcement.” Id. At some point, Pinson was transferred to the federal
correctional facility in Talladega, Alabama. Id.Pinson filed the Bivens action on June 14, 2010, while he was incarcerated
at the Talladega facility. ROA, Vol. 1 at 7–8. In his complaint, Pinson alleged
his Eighth Amendment rights were violated due to federal prison officials’
deliberate indifference to his safety, pointing to the inmate attacks against him in
December 2007 and April 2008. Id. at 9. Pinson named the following individuals
as defendants: (1) Robert Pacheco, the case manager at the USP in Florence,
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Colorado; (2) Sara Revell, the former warden at the USP in Florence, Colorado;
(3) Merry Wilner, Pinson’s unit manager at the USP in Florence, Colorado; (4)
Delbert Sauers, the chief of the Bureau of Prisons (BOP) Designation and
Sentence Computation Center; (5) Harley Lappin, the director of the BOP; and (6)
Michael Nalley, the regional director of the BOP. 1 Id. at 8, 15.
On June 21, 2010, Pinson filed his first motion for a preliminary injunction,
the Emergency Motion For a Preliminary Injunction, seeking an order “enjoining
defendants . . . from housing [him] in the same institution with inmates or prison
gangs who pose a known, specific risk of harm toward [him] and ordering
defendants to consider housing [him] in a low security or medium security
institution to determine if such would facilitate [his] safety needs.” Id. at 19–20.
The district court denied the motion, stating:
Mr. Pinson fails to allege specific facts that demonstrate he is facing
immediate and irreparable injury. Although Mr. Pinson asserts in his
Complaint that he was attacked on December 12, 2007 while he was housed
at the federal prison in Florence, Colorado and again on April 9, 2008 at
the federal prison in Victorville, California, he does not assert that he now
is in immediate danger of being attacked where he is housed at the federal
prison in Talladega, Alabama. Mr. Pinson seeks injunctive relief from
being placed in a prison facility where he may be housed with inmates or
prison gang members who pose a known, specific risk of harm to him. His
claim of future injury is speculative.
1
According to the appellees’ answer brief, defendants Pacheco and Sauers
have not been personally served in the Bivens action. Aple. Br. at 3 n.4; see also
Status Report Concerning Service on Defendant Pacheco dated 12/14/2010, Case
No. 1:10-CV-01377, Dist. Ct. Dkt. No. 103.
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Id. at 56–57. Pinson filed a notice to appeal this decision. Id. at 59.
Shortly after filing his notice of appeal, Pinson filed his second motion for
a preliminary injunction, the Renewed Emergency Motion For Subpoena, Hearing,
and Issuance of a Preliminary Injunction. Id. at 63. In this motion, Pinson
asserted that “he is in imminent danger of irreparable harm,” contending that, on
June 25, 2010, he “was involved in an altercation with another inmate resulting in
that inmates’ hospitalization” and that, on August 3, 2010, “another inmate was
stabbed to death less than 20 feet from [Pinson’s] cell.” Id. at 63–64. On this
basis, Pinson requested the issuance of a preliminary injunction. Id. at 63.
While the second motion for a preliminary injunction was pending in the
district court, this court affirmed the district court’s decision denying the first
motion. Pinson, 397 F. App’x at 490. We confined our analysis to the two
inmate attacks identified in the complaint and declined to consider the subsequent
incidents on June 25 and August 3, 2010 that Pinson first raised in his second
motion. Id. at 491. Based on the evidence, this court concluded,
The district court did not abuse its discretion when it determined that
Pinson’s allegations did not show that he was in immediate danger at the
Talladega prison. The district court could reasonably conclude that the past
incidents did not show a likelihood of future harm to Pinson at Talladega
because they did not occur at Talladega. Pinson requested an injunction
preventing defendants from housing him in the same institution with
inmates or prison gangs “who pose a known, specific risk of harm toward
Plaintiff,” but did not allege that he was, in fact, being housed with such
inmates. Further, we fail to see how being housed in the same correctional
institution (rather than in the same unit or the same cell) as inmates with
whom he has some unspecified history would pose an immediate risk of
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harm to Pinson.
Id. at 492.
With regard to Pinson’s second preliminary injunction motion, the matter
was referred to a magistrate judge, and the magistrate judge recommended that
the district court deny the motion because “plaintiff has not shown in his motion
that he will suffer immediate and irreparable harm if the injunction does not
issue.” ROA, Vol. 1 at 115. The magistrate judge reasoned:
Once again, plaintiff’s claim of future injury is speculative. While plaintiff
claims he was involved in an altercation on June 25, plaintiff does not
provide any information about that incident, such as whether plaintiff was
attacked and whether the other inmate is or was a member of the gang that
purportedly poses a threat to him. Moreover, the documentation plaintiff
has submitted with his motion further shows that the Bureau of Prisons is
taking steps to separate plaintiff from purported threats.
Id. at 113–14. Further, the magistrate judge explained that “plaintiff has not met
his heavy burden to show that the injunction is not adverse to the public interest.”
Id. at 115. Pinson objected to the magistrate judge’s findings and
recommendations. Id. at 118–24. The district court overruled Pinson’s
objections, adopted the magistrate judge’s recommendation, and denied Pinson’s
second motion. Id. at 156–58, 217–18. Pinson filed a notice of appeal from this
decision. Id. at 243.
Pinson also filed a third preliminary injunction motion, Plaintiff’s Third
Motion For a Preliminary Injunction/Declaratory Order. Id. at 164. In the third
motion, Pinson sought a preliminary injunction “(1) enjoining the Bureau of
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Prisons from transferring Plaintiff to the Administrative Maximum U.S.
Penitentiary at Florence, CO [because, at the time, Pinson’s transfer to the ADX
facility was pending], (2) from housing Plaintiff in a unit or institution with
prison gangs from whom he should remain separate, and (3) to consider placing
Plaintiff in the Witness Security Program.” Id.
The magistrate judge recommended that the district court deny the motion.
Id. at 215. The magistrate judge explained that “plaintiff’s claim of future injury
is speculative.” Id. at 213. The magistrate judge reasoned that the documentation
Pinson provided “shows that plaintiff has a history of serious/disruptive
infractions.” Id. at 214 (internal quotation marks omitted). In fact, based on the
evidence Pinson provided regarding the June 25 incident at the Talladega facility
identified in the second motion, the magistrate judge noted that Pinson “was the
aggressor” against another inmate. Id. at 213. The magistrate judge also
reasoned that Pinson “has not presented any evidence that his placement in ADX
Florence would present a danger to his safety and security.” Id. at 214. Thus, the
magistrate judge found that, “[o]nce again, . . . plaintiff has not shown in his
motion that he will suffer immediate and irreparable harm if the injunction does
not issue.” Id. Further, the magistrate judge explained that “plaintiff has not met
his heavy burden to show that the injunction is not adverse to the public interest.”
Id. Pinson filed objections to the magistrate judge’s report and recommendation.
Id. at 229–232. The district court overruled Pinson’s objections, adopted the
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magistrate judge’s recommendation and denied the preliminary injunction. Id. at
259. Pinson filed a notice of appeal from this decision. Id. at 270.
While Pinson’s appeals of the denials of his second and third preliminary
injunction motions were pending in this court, Pinson was transferred to the ADX
facility in Florence, Colorado. See Notice of Change of Address by Plaintiff
Jeremy Pinson dated 2/28/2011, Case No. 1:10-CV-01377, Dist. Ct. Dkt. No. 136.
Further, the district court granted defendants Lappin’s, Nalley’s, Revell’s and
Wilner’s motions to dismiss the claims asserted against them in the underlying
action, concluding that these claims were barred by the applicable statute of
limitations. See Order dated 5/9/2011, Case No. 1:10-CV-01377, Dist. Ct. Dkt.
No. 161. The district court then issued an order to show cause why Pinson’s
remaining claims against defendants Pacheco and Sauers “should not be dismissed
for failure to effect timely service or process and/or as barred by limitations.”
Order to Show Cause dated 5/9/2011, Case No. 1:10-CV-01377, Dist. Ct. Dkt.
No. 162.
II. DISCUSSION
We review the district court’s denial of a preliminary injunction for abuse
of discretion. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th
Cir. 2003). “In doing so, we examine the district court’s factual findings for clear
error and review its legal determinations de novo.” Id.In order to obtain a preliminary injunction, the movant must establish:
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(1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is denied; (3)
the threatened injury to the movant outweighs the injury to the other party
under the preliminary injunction; and (4) the injunction is not adverse to
the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 1991). “Because a preliminary
injunction is an extraordinary remedy,” the movant’s “right to relief must be clear
and unequivocal.” Id. (internal quotation marks omitted).
On appeal, Pinson challenges the district court’s decisions denying his
second and third motions for a preliminary injunction. Pinson argues that, with
regard to both motions, the district court erred in determining that he failed to
show irreparable harm would result if the preliminary injunction was not granted
and that he did not establish that the issuance of a preliminary injunction was not
adverse to the public interest. Pinson further contends that the district court erred
in failing to hold a hearing or to issue subpoenas prior to denying the motions.
As a preliminary matter, we must consider the relevance of the district
court’s decision to dismiss Pinson’s claims against defendants Lappin, Nalley,
Revell and Wilner during the pendency of this appeal. An appeal from an
interlocutory order denying a preliminary injunction does not divest the district
court of jurisdiction to proceed with the underlying action on the merits. See
Colo. v. Idarado Mining Co., 916 F.2d 1486, 1490 n.2 (10th Cir. 1990). When a
district court proceeds to adjudicate the merits of the underlying action and enters
a final judgment, an appeal from the denial of a preliminary injunction is moot
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because a preliminary injunction is by its nature a temporary measure intended to
furnish provisional protection while awaiting a final judgment on the merits. See
United States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th Cir. 1998).
However, because the district court’s order in this case dismissing the claims
against defendants Lappin, Nalley, Revell and Wilner is not a final judgment as it
resolves claims against only some of the defendants, Pinson’s second and third
motions for a preliminary injunction are not moot. See Fed. R. Civ. P. 54(b).
Nonetheless, the district court’s order dismissing Pinson’s claims against
defendants Lappin, Nalley, Revell, and Wilner is relevant to our consideration of
the second and third preliminary injunction motions. While we note that the
magistrate judge’s decisions denying the second and third motions, which the
district court adopted, did not address Pinson’s likelihood of succeeding on the
merits of the underlying action, we conclude that Pinson cannot establish this
prong of the preliminary injunction analysis. Because the district court dismissed
Pinson’s claims against defendants Lappin, Nalley, Revell and Wilner as time-
barred, 2 and because his claims against Pacheco and Sauers are identical to the
claims the district court dismissed, we conclude that Pinson cannot demonstrate a
substantial likelihood of succeeding on the merits of his claims.
2
We express no opinion regarding the district court’s decision dismissing
Pinson’s claims against defendants Lappin, Nalley, Revell and Wilner as time-
barred.
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Beyond Pinson’s inability to establish a substantial likelihood to succeed on
the merits of the underlying action, the district court did not abuse its discretion
in concluding that Pinson did not establish irreparable injury and that he did not
show that the issuance of an injunction was not adverse to the public interest.
“To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical.” Heideman, 348 F.3d at 1189 (internal quotation marks omitted).
With regard to the second motion for a preliminary injunction, Pinson asserted
that the incidents at the Talladega facility occurring on June 25 and August 3,
2010 demonstrated his imminent danger, necessitating the issuance of a
preliminary injunction. ROA, Vol. 1 at 64. However, as the magistrate judge
found, and the district court adopted, Pinson provided no details in his second
motion as to “whether [he] was attacked [on June 25] and whether the other
inmate is or was a member of the gang that purportedly poses a threat to him.”
Id. at 114. Pinson also failed to allege any facts regarding whether the incident
on August 3 involved a member of a prison gang posing a threat to him or
whether the incident even related to Pinson. Without these details, Pinson failed
to establish that future injury was imminent at the Talladega facility in his second
motion. Further, as Pinson is now incarcerated at the ADX facility in Florence,
the incidents identified in his second motion as occurring at the Talladega facility
are even less indicative of any future threat to Pinson’s safety because they did
not occur at the ADX facility. The magistrate judge also found, and the district
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court adopted, that the evidence Pinson provided in support of his second motion
documented that the prison officials were responding to his safety concerns. Id.
Thus, the district court did not abuse its discretion in determining that Pinson
failed to establish irreparable injury in his second motion.
As concerns his third motion, Pinson requested an order enjoining
defendants from transferring him to the ADX facility in Florence, enjoining
defendants from housing him in a unit with prison gangs, and requesting his
placement in the BOP Witness Security Program. As the magistrate judge
explained, and the district court adopted, Pinson “provided no new, substantial
evidence to support his motion for a preliminary injunction.” Id. at 214. Instead,
the “documentation presented by plaintiff shows repeated disciplinary violations
by plaintiff, not by other inmates, for threatening bodily harm, possessing a
dangerous weapon, assault with serious injury, taking a hostage, setting a fire, and
disruptive conduct.” Id. In fact, the magistrate judge explained that the
documentation Pinson provided regarding the June 25 incident at the Talladega
facility established that Pinson “was the aggressor” against another inmate. Id. at
213. Further, Pinson did not present “evidence that his placement at ADX
Florence would present a danger to his safety and security.” Id. at 214.
First, because Pinson was transferred to the ADX facility in Florence
during the pendency of this appeal, his request for an order enjoining the transfer
is moot. Second, the district court did not err in concluding that Pinson failed to
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show the existence of an imminent danger to his safety in the third motion.
Rather than establishing his danger from other inmate attacks, Pinson’s evidence
documented his own serious disciplinary issues. Pinson also asserted general
allegations regarding the presence of gangs at the Talladega facility and the ADX
facility in Florence. However, as we have previously explained, “we fail to see
how being housed in the same correctional institution (rather than in the same unit
or the same cell) as inmates with whom he has some unspecified history would
pose an immediate risk of harm to Pinson.” Pinson, 397 F. App’x at 492.
Further, as Pinson is now incarcerated at the ADX facility in Florence, the
incidents Pinson identified as occurring at Talladega are not indicative of an
imminent threat to his safety at the ADX facility because these incidents did not
occur at the ADX facility. Thus, we conclude that the district court did not abuse
its discretion in determining Pinson failed to show that he was in immediate
danger of an attack by another inmate.
The district court did not abuse its discretion in determining Pinson failed
to show that the public interest was not adverse to the preliminary injunction. As
the magistrate judge noted, and the district court adopted, there is a strong public
interest in affording substantial deference to prison officials in managing the daily
operations of a prison due to the unique nature, needs and concerns of the prison
environment. See Turner v. Safley, 482 U.S. 78, 84–85 (1987). Thus, given the
speculative nature of the harm Pinson asserted in the second and third motions, he
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failed to show that the public interest was not adverse to the issuance of a
preliminary injunction ordering prison officials to change his housing assignment.
We also reject Pinson’s arguments concerning the district court’s refusal to
issue subpoenas or to hold a hearing prior to denying his second and third
preliminary injunction motions. When considering the second and third motions
for a preliminary injunction, the magistrate judge assumed that Pinson’s
allegations were true. Thus, because there were no contested facts, the refusal to
hold a hearing did not constitute an abuse of discretion. Further, because there
was no need for a hearing, there was no need to subpoena witnesses or documents
for the hearing. Thus, by adopting the magistrate findings and recommendations,
the district court did not abuse its discretion in this regard.
III. CONCLUSION
We affirm the district court’s denial of the second and third preliminary
injunction motions.
We grant Pinson’s motion for leave to proceed in forma pauperis in appeal
number 10-1576. We remind Pinson that he remains responsible to make partial
payments for both of the appeals consolidated in this case until all fee obligations
are satisfied. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).
Entered for the Court
Mary Beck Briscoe
Chief Judge
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